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    Advance Directives

    Frequently Asked Questions On Advance Directives

    What is an advance directive?

    If you are physically and mentally able, it is up to you to make all of your health care decisions. However, if you are unable (or unwilling) to make decisions, you can use an advance directive to help. An advance directive is a legal document that allows you to appoint someone to work with your doctors and others to help make sure your wishes about your health care decisions are honored. It also allows you to tell others how you want to receive your health care when you are too sick to talk. It is used to make sure that your health care wishes are known and respected. There are many forms you can use or you can write your own. You can complete an advance directive any way you wish.

    There are two parts to an advance directive:

    1. First, you may appoint another person to be your health care "agent." This person is also often referred to as your “surrogate” decision maker. This person will have legal authority to make decisions about your medical care if you become unable to make these decisions for yourself.
    2. Second, you may write down your specific health care wishes and preferences for treatment. For example, a desire not to receive treatment that only prolongs the dying process if you are terminally ill. Your doctor and your agent must follow your lawful instructions.

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    Why is it important to have a signed advance directive?

    Completing an advance directive can help your loved ones and your doctor(s) by reducing confusion and disagreement over your personal wishes and choices at a time when you are too sick to express them yourself. In the absence of an advance directive, sometimes, difficult times can be made worse. An advance directive can help to reduce undue stress and hardship experienced by yourself and your loved ones. So it’s important to share with your doctor, family, and close friends now, before you are too sick to talk or write about things that are important to you regarding your values, quality of life, your choices on health care treatments, and how you want to spend your final days.

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    Is this something only the elderly need to be concerned with? Who can complete an advance directive?

    Any California resident who is at least eighteen years old, of sound mind, and acting of his or her own free will can complete a valid advance directive. It is a good idea for even the younger and the healthy to think about these issues and complete and advance directive as anything could happen at any time.

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    Is an advance directive different from a "living will"?

    An Advance Directive is now the legally recognized format for a living will in California. It replaced the living will (Natural Death Act Declaration). An advance directive is more comprehensive than a living will, which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An advance directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation.

    Unlike a living will, an advance directive also can be used to state your desires about your health care in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill. In addition, an Advance Directive allows you to appoint someone you trust to speak for you when you are incapacitated.

    You do not need a separate living will if you have already stated your wishes about life-sustaining treatment in an advance directive.

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    Is an advance directive different from a "Durable Power of Attorney for Health Care"?

    The advance directive has replaced the Durable Power of Attorney for Health Care as the legally recognized document for appointing a health care agent in California. The advance directive, as in the case of the living will, is more comprehensive than a Durable Power of Attorney for Health Care. An advance directive permits you not only to appoint an agent, but to give instructions about your own health care. You can do either or both of these things.

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    What if I have already executed a Durable Power of Attorney for Health Care or a living will (Natural Death Act Declaration)? Is it still valid?

    Do I have to complete a new advance directive?

    All valid Durable Powers of Attorney for Health Care (DPAHC or DPOA) and Natural Death Act Declarations (living wills) remain valid. Thus, unless your existing DPAHC has expired, you do not have to complete a new Advance Directive, unless you want to. A DPAHC executed before 1992 has expired and should be replaced.

    Because the new advance directive gives you more flexibility to state your health care desires, you may wish to complete the new form even if you previously completed a DPAHC or Natural Death Act Declaration. At a minimum, you should review your existing DPAHC or Natural Death Act Declaration to make sure it has not expired and that it still accurately reflects your wishes.

    In the hospital, despite the term being outdated, you may hear health care professionals refer to your agent or surrogate as your “DPOA.”

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    Do I need a lawyer to complete an advance directive? Do I need to have the document notarized?

    No. You do not need a lawyer to assist you in completing an advance directive. The only exception applies to individuals who have been involuntarily committed to a mental health facility who wish to appoint their conservator as their agent. Also, there is no need to have the document notarized.

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    Who may I appoint as my health care agent?

    You can appoint almost any adult to be your agent. You can choose a member of your family such as your spouse or an adult child, a friend, or someone else you trust. You can also appoint one or more "alternate agents" in case the person you select as your health care agent is unavailable or unwilling to make a decision. (If you appoint your spouse and later get divorced, the advance directive remains valid, but your first alternate agent will become your agent.)

    It is important that you talk to the people you plan to appoint to make sure they understand your wishes and agree to accept this responsibility. Your health care agent will be immune from liability so long as he or she acts in good faith.

    The law prohibits you from choosing certain people to act as your agent. You may not choose your doctor, or a person who operates a community care facility (sometimes called a "board and care home") or a residential care facility in which you receive care. The law also prohibits you from appointing a person who works for the health facility in which you are being treated, or the community care or residential care facility in which you receive care, unless that person is related to you by blood, marriage, or adoption, or is a co-worker.

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    What if I don’t choose a health care agent?

    If you are too sick to make decisions on your own, your doctors will ask those closest to you to act on your behalf. If there is great disagreement between family members, doctors, or family members and doctors, and decisions cannot be made in a timely fashion, your care could be jeopardized. This leaves you and your care in a dubious place. Sometimes legal steps are taken, like getting a court appointed guardian, who doesn’t know you or your values, to make decisions for you. This is best avoided.

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    Can I exclude someone from making decisions for me?

    Yes. If you think that your health care agent and another person close to you may disagree about decisions made about your care, you can exclude that person.

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    I want to provide more specific health care instructions than those included on the form. How do I do that?

    You may write detailed instructions for your health care agent and physicians. To do so, simply attach one or more sheets of paper to the form, write your instructions, write the number of pages you are attaching in the section of the form that specifies your health care wishes, and sign and date the attachments at the same time you have the form witnessed.

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    How much authority will my health care agent have?

    If you become unable to make your own health care decisions, your agent will have legal authority to speak for you in health care matters. Physicians and other health care professionals will look to your agent to help them make decisions rather than your next of kin or any other person. Your agent will be able to accept, or refuse medical treatment, have access to your medical records, and make decisions about donating your organs, authorizing an autopsy, and disposing of your body should you die.

    If you do not want your agent to have this authority or to make certain decisions, you can write a statement in the advance directive form limiting your agent's authority. In addition, the law says that your agent cannot authorize convulsive treatment (i.e., electroconvulsive therapy or ECT), psychosurgery, sterilization, abortion, or placement in a mental health treatment facility.

    The person you appoint as your agent has no authority to make decisions for you until you are unable to make those decisions yourself, unless you choose to allow your agent to make those decisions for you immediately.

    When you become incapacitated, your agent must make decisions that are consistent with any instructions you have written in the advance directive form or made known in other ways, such as by telling family members, friends or your doctor. If you have not made your wishes known, your agent must decide what is in your best interests, considering your personal values to the extent they are known. Ethics consultation can be helpful in this situation.

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    What should I tell my family, my health care agent, and my doctors?

    One of the most important parts of completing an advance directive is the conversations you have about it with your loved ones and your physicians. You should talk about your personal values and what makes living meaningful for you; your current medical condition and decisions you may foresee in the future; specific concerns or wishes you may have regarding life support or aggressive interventions, hospice or long-term care; what concerns you most about death or dying; and how you would want to spend the last month of your life. It is recommended, although not always possible, that such a discussion include both your physician and your health care agent (and alternate agent).

    Tell your loved ones that you have completed an advance directive and what you have said in it, especially if you have selected a health care agent. Your advance directive will likely go into effect during a period of crisis for them. It can help ease their burden to know that you have made some of these decisions in advance. In addition, they should know in advance who is to speak for you in making medical decisions and where copies of your advance directive can be found. Remind them that their role is to make sure that your wishes are communicated and that those wishes guide their decision making.

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    Will my health care agent be responsible for my medical bills?

    No, not unless that person would otherwise be responsible for your debts. The advance directive deals only with medical decision making and has no effect on financial responsibility for your health care.

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    For how long is an advance directive valid?

    An Advance Directive is valid forever, unless you revoke it or state in the form a specific date on which you want it to expire.

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    What should I do with the advance directive form after I fill it out?

    Make sure that the form has been properly signed, dated, and at least witnessed by two qualified individuals (the form includes instructions about who can and cannot be a witness). Keep the original in a safe place where your loved ones can find it quickly. Give copies of the completed form to the people you have appointed as your agent and alternate agent(s), to your doctor(s) and health plan, and to family members or anyone else who is likely to be called if there is a medical emergency. You should tell these people to present a copy of the form at the request of your health care providers or emergency medical personnel.

    Take a copy of the form with you if you are going to be admitted to a hospital, nursing home or other health care facility. Copies of the completed form can be relied upon by your agent and doctors as though they were the original.

    In addition, you should fill out a contact list. This will enable you to communicate any changes you make to your directive. Make sure you include the name, address, and telephone and fax numbers for each person or facility to whom you have given a copy of your Advance Directive form.

    You may also register your advance directive with the California Secretary of State. This may be helpful if your doctor(s) is having trouble locating a copy of your advance directive. For more information, visit the California Secretary of State. Opens new window

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    What if I change my mind after completing an advance directive?

    You can revoke or change an advance directive at any time. To revoke the entire form, including the appointment of your agent, you must inform your treating health care provider personally or in writing. Completing a new advance directive will revoke all previous directives. In addition, if you revoke or change your directive, you should notify every person or facility that has a copy of your prior directive and provide them with a new one.

    You should complete a new form if you want to name a different person as your agent or make other changes. However, if you need only to update the address or telephone numbers of your agent or alternate agent(s), you may write in the new information, and initial and date the change. Of course, you should make copies or otherwise ensure that those who need this new contact information will have it.

    If you wish to change your health care agent in an emergent situation, for example after being admitted to the ICU, and you are unable to complete a new form, you may do so by verbally telling your treating physician or nurse while in the hospital. Your physician or nurse will make sure that the people caring for you will know who you have appointed.

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    I have reached a point in my life that I don't want the paramedics to give me CPR. Will an advance directive keep this from happening?

    If the paramedics are made aware of your advance directive before they start resuscitative efforts, and the advance directive clearly instructs them not to start these efforts, your wishes should be respected. You may also want to complete a "Prehospital Do Not Resuscitate (DNR)" form and obtain a "Do Not Resuscitate– EMS" medallion approved by California's Emergency Medical Services Authority. You can get a copy of the pre-hospital DNR form by clicking here. For information on the medallion, as well as the form, visit the California Emergency Medical Services Authority. Opens new window

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    Is my advance directive valid in other states?

    An advance directive that meets the requirements of California law may or may not be honored in other states, but most states will recognize an advance directive that is executed legally in another state. If you spend a lot of time in another state, you may want to consult a doctor, lawyer, or the medical society in that state to find out about the laws there.

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    There are many forms. Which one is right for me?

    There are many forms available - from the California Hospital Association, Jewish and Catholic forms, and others. We recommend use of the California Hospital Association’s form, however, you can use any form you wish. You can also make your own.

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